State ex rel. Ellis v. Burnside
2017 Ohio 658
Ohio Ct. App. 9th2017Background
- Relator Lddaryl Ellis (pro se) sought a writ of mandamus ordering Judge Janet R. Burnside to conduct a resentencing in Cuyahoga C.P. No. CR-12-568532, claiming the sentencing entry failed to impose postrelease control on Count 9 (felonious assault) and Count 14 (aggravated riot).
- Judge Burnside moved for summary judgment and submitted the April 12, 2013 sentencing hearing transcript showing Ellis was orally notified of postrelease control for Count 9.
- The judge also filed a nunc pro tunc journal entry (journalized Nov. 29, 2016) correcting the original entry to reflect postrelease control on Count 9.
- This court had earlier (State v. Ellis, 8th Dist.) reversed in part and vacated the conviction on Count 14; upon remand the conviction for Count 14 was vacated and no sentence exists for that count.
- The trial court argued, and the appellate court found, that mandamus was unnecessary because the sentencing hearing provided proper oral notification for Count 9 and the journal entry was corrected nunc pro tunc; no duty remained as to Count 14 because that conviction was vacated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether postrelease control for Count 9 was improperly omitted from the sentencing entry | Ellis: journal entry omitted postrelease control and thus resentencing is required | Judge: transcript shows oral notification at sentencing; nunc pro tunc entry corrected the journal | Court: Oral notification satisfied requirement; nunc pro tunc correction cures the entry; mandamus moot/denied |
| Whether postrelease control must be imposed for Count 14 | Ellis: postrelease control should have been imposed for Count 14 | Judge: Count 14 conviction was vacated on appeal, so no sentence exists and no duty to notify | Court: No duty exists because Count 14 was vacated; no relief warranted |
| Whether mandamus is an available remedy | Ellis: seeks writ to compel resentencing | Judge: duty already performed (correction and no sentence for Count 14); mandamus cannot compel completed acts | Court: Writ denied as relief is moot or unnecessary |
Key Cases Cited
- State v. Qualls, 131 Ohio St.3d 499 (2012) (when postrelease-control notification is given at the sentencing hearing, a nunc pro tunc entry may correct a deficient written entry without a new hearing)
- State ex rel. Hopson v. Cuyahoga Cty. Court of Common Pleas, 135 Ohio St.3d 456 (2013) (mandamus will not compel performance of a duty already performed)